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It seems clear that upon revocation of "shock probation" the court has no authority to increase the sentence previously assessed. Amado, 983 S.W.2d 331-2; Weed, 891 S.W.2d at 24. Does the court have authority to reduce the sentence previously assessed, e.g. under sec. 23(a) of art. 42.12? Does this authority, if it exists, interfere with the powers granted exclusively to the governor to commute sentences under art. IV, sec. 11 of the Constitution? Do you recommend that the sentence be reduced in order to get a "true plea" to a motion to revoke (shock) probation?
 
Posts: 2385 | Registered: February 07, 2001Reply With QuoteReport This Post
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Am I to gather that no one has ever revoked a "shock probationer"? Come on, surely someone else has had the opportunity to negotiate for a "true plea" on a motion to revoke community supervision granted under sec. 6 (or 8) of 42.12. Weren't you at least asked to recommend a reduced sentence?
 
Posts: 2385 | Registered: February 07, 2001Reply With QuoteReport This Post
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Last year we had a defendant that was originally sentenced to 5 years and placed on probation for 5 years in about 1999. In 2001, we filed a motion to revoke, agreed to reduce sentence, and not to oppose a motion for shock in 6 months. Defendant entered a plea of true, went to TDCJ, filed his motion, and was again placed on probation. Within a couple of months, def. messed up, we filed a motion to revoke, again agreed to recommend a reduced sentence in exchange for a (another) plea of true. I couldn't find anything then that said we could NOT, and the judge didn't have a problem with it. As far a "commuting" sentence goes, is there really any difference between reducing a sentence after shock and reducing a sentence when revoking regular probation?
 
Posts: 53 | Location: Fort Stockton, Texas USA | Registered: April 04, 2001Reply With QuoteReport This Post
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No judge should be granting shock probation after a jury has imposed a prison sentence. Presumably, that jury passed on probation or the defendant was ineligible.

Previously, the CCP had a list of offenses for which the judge could not give shock probation. That law was created after a judge gave shock probation to a public official who was convicted of bribery and sentenced to prison. So, the Legislature started a list of offenses for which defendant's were ineligible for shock probation.

During the Penal Code and CCP rewrite of 1993, that list was removed because it was time to trust judges to do the right thing. Maybe not.

 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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John, I would certainly agree that if a jury chose prison as the proper punishment, the court should not have authority, or at least not exercise it, to "override" the verdict. I would also be a lot more in favor of shock probation if it did not "unfinalize" the conviction. I also find it amazing that we can wink and say it is in the best interest of society that a convicted felon who got out of the pen deserves a lesser sentence when he goes back (because of additional misconduct). But that is how the system works. I am not satisfied that the law allows such reductions, but apparently there will never be anyone to complain to the appellate courts about the practice (in order to find out for sure). I remain curious how widespread this practice is, or if some jurisdictions have determined no reduction will be recommended under any circumstance.
 
Posts: 2385 | Registered: February 07, 2001Reply With QuoteReport This Post
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